Schultz' Estate, In re

• Decision Date: 01 February 1972
• Docket Number: No. 258,258
• Citation: 53 Wis.2d 643,193 N.W.2d 655
• Parties: In re ESTATE of Frances SCHULTZ, Deceased. Thomas C. SCHULTZ et al., Appellants, v. Louis MOLEPSKE, Exr., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 655

193 N.W.2d 655

53 Wis.2d 643

In re ESTATE of Frances SCHULTZ, Deceased.

Thomas C. SCHULTZ et al., Appellants, v. Louis MOLEPSKE, Exr., et al., Respondents.

No. 258.

Supreme Court of Wisconsin.

Feb. 1, 1972.

This is an appeal from an order admitting the last will and testament of Frances Schultz to probate over the objection of appellants, Thomas C. Schultz and Ambrose Simkowski.

Frances Schultz, a resident of Portage county, died testate on July 15, 1970. Respondent Frank Simcakowski, brother of the deceased, moved to have the will admitted to probate. Appellants Thomas C. Schultz and Ambrose Simkowski objected, claiming that an earlier will executed by Frances and her husband should be admitted to probate and that, by virtue of that will, they were entitled to be named executors. In support of this contention, they informed the court that on September 15, 1954, Frances and her husband, Leo, had executed a joint will which provided that the entire estate of the first to die should pass to the survivor for life, and that upon the death of the survivor, the remainder should be divided between various named relatives of both the husband and wife. The joint will named as co-executors appellant Thomas C. Schultz, a nephew of the husband, and appellant Ambrose Simkowski, a nephew of the wife, and provided that each was to be paid $500 as executor's fees.

Leo Schultz died on October 29, 1959, leaving the above-mentioned will in effect. The will, however, was not probated, as the bulk of his estate was in joint tenancy with his wife, Frances Schultz; and his estate was settled by the issuance of a certificate of termination of joint tenancy.

After Leo's death, Frances executed a new will, dated February 16, 1961, which expressly revoked all former wills. The will provided for the distribution of Frances' estate in a manner substantially identical to that set forth in the residuary clause of the joint will and appointed appellants co-executors. Compensation of $500 was to be paid to each as executor's fees. Subsequently, on October 11, 1961, Frances executed a codicil to her will, which revoked the appointment of appellants and named respondent Louis Molepski as executor of the estate.

The probate court heard testimony proving the will of February 16, 1961, and the codicil thereto and admitted them to probate. Considering himself bound by the mandatory terms of sec. 310.12, Stats., the judge granted letters testamentary to respondent. Appeal is taken from the order admitting the will to probate and issuing the letters testamentary.

John J. Haka, Stevens, Point, for appellants; Genrich, Terwilliger, Wakeen, Piehler & Conway; Richard C. Doersch, Wausau, of counsel.

Bablitch & Molepske, Stevens Point, for Louis Molepske; James M. Bablitch, Stevens Point, of counsel.

Norman L. Wanta, Stevens Point, for respondent Simcakowski.

HANLEY, Justice.

Three issues are raised on this appeal:

(1) Was it error to admit Frances' will to probate;

(2) Should letters testamentary have been granted to appellants rather than to respondent Molepske; and

(3) Does the probate court have jurisdiction to grant the relief sought by appellants?

Admission of Will.

Appellants' first contention is that the joint will should have been admitted to probate, rather than the later will of Frances. We do not agree with this contention. The case of Doyle v. Fischer (1924), 183 Wis. 599, 198 N.W. 763, settled the proposition that two persons may enter into an agreement to make joint, mutual and reciprocal wills disposing of their separate estates according to some mutually agreeable plan, and that the agreement becomes binding when partially executed. This doctrine was explained in Estate of Chayka (1970), 47 Wis.2d 102, 176 N.W.2d 561, as follows:

'Where two parties contract to make a joint, mutual and reciprocal will, each pledges to the other that he will execute a mutually agreeable will, and will have that will in full force and effect at the time of death. The parties may express such contract in a separate document, state in the joint will that it is a contract, or the fact of contract may be conclusively presumed from the fact of the joint will being executed. Such contract becomes partially executed upon the death of one of the parties to the agreement and the acceptance by the survivor of properties devised or bequeathed under the will and pursuant to the agreement to make such joint will. At this point the contract becomes irrevocable, the survivor having received the consideration promised.' Estate of Chayka, supra, at page 106, 176 N.W.2d at page 563.

However, the existence of an irrevocable contract governing the disposition of an estate does not affect the right to make or change a will, as stated in Doyle v. Fischer, supra, 183 Wis. at page 606, 198 N.W. at page 765:

'. . . It should be borne in mind that it is the contract and not the will that is irrevocable. The authorities generally hold that the will may be revoked, but the contract stands and will be enforced by equity if it be a valid contract and such enforcement is necessary for the prevention of fraud.'

We conclude that it was proper to admit Frances' will to probate. Appellants' remedy is to commence an action in equity to enforce the contract rather than to challenge the later will which expressly revoked the joint will.

Granting Letters Testamentary.

Appellants contend that by virtue of the joint will, which became irrevocably binding upon the death of Leo and the acceptance by Frances of the properties devised and bequeathed under the will, they are entitled to have letters testamentary granted to them. In essence, they are seeking specific performance of that part of the contractual will which appointed them executors of the estate. On the present record, however, we think that the trial court did not err in granting letters testamentary to respondent rather than to appellants. The joint will was never offered into evidence or filed with the probate court. Copies of what purport to be the joint will are attached to the briefs submitted to the trial court,...